Putting aside the frivolity of the lawsuit, as the Virginia Voter ID law was specifically written to comply with recent Supreme Court Precedent, we must recall that Marc Elias represented Mark Herring during the recount that granted him the election in 2013 over Senator Mark Obenshain. This means that Elias, as prior counsel to Mark Herring still owes Herring certain ethical duties. As the review of provisional ballots was a part of the recount procedure that Elias represented Herring on, and Herring, as Attorney General, is now responsible for defending the Voter ID statute these two lawsuits involve substantially related matters. Further, it is highly likely that Elias and Herring have had privileged communications related to mattes that will be at issue in the Voter ID suit. The key Virginia Rule of Professional Responsibility is as follows:

RULE 1.9 Conflict of Interest: Former Client

a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless both the present and former client consent after consultation.

b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client:

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter;

unless both the present and former client consent after consultation.

The Voter ID case falls squarely within this rule as it relates to Elias’s former representation of Herring both in the adverse representation and the Elias’s knowledge of Herring’s views and opinions on the matter. The only way that Elias can represent Hillary and the Democrats in this matter is if he 1) consults with Herring as to the conflict and 2) Herring waives the conflict of interest.

Herring also has an ethical responsibility to the Commonwealth of Virginia, his client in this case:

RULE 1.3 Diligence

(a) A lawyer shall act with reasonable diligence and promptness in representing a client.

(b) A lawyer shall not intentionally fail to carry out a contract of employment entered into with a client for professional services, but may withdraw as permitted under Rule 1.16.

(c) A lawyer shall not intentionally prejudice or damage a client during the course of the professional relationship, except as required or permitted under Rule 1.6 and Rule 3.3.

If Herring waived the conflict for Elias, it would arguably prejudice the Commonwealth of Virginia under Rule 1.3(c). Absent such a waiver, maintaining his role of Attorney General in the Voter ID suit wile allowing Elias to maintain representation the plaintiffs is perpetuating the conflict of interest to the detriment of the Commonwealth. Alternatively, Herring could withdraw his representation of the Commonwealth in the Law Suit – instead appointing outside representation.

Unfortunately, Herring’s track record in vociferously advocating for the Commonwealth in political cases is abysmal. Herring blatantly violated Rule 1.3 once already in the Bostic v. Rainey case. Herring famously placed his personal politics over his duty to represent the Commonwealth in this case when actually openly advocated against the Commonwealth of Virginia in the case. Regardless of your or his position on the gay marriage issue, this failure to represent the Commonwealth was an serious breach of trust and ethics. Notably, there is precedent for not defending a case where an Attorney General reasonably believes such representation violates the constitution, but the correct action is to step aside and not advocate at all. To take the next step and actually advocate against the Virginia Constitution was a clear breach of his ethical duties to his office and as an attorney.

So the question is, as the Voter ID lawsuit proceeds will Attorney General Herring assert the conflict of interest that exists between himself and his former counsel? Or will Herring again breach his ethical duties to the Commonwealth by allowing the conflict of interest to continue. Or, even further, will Herring again violate his duty to advocate vociferously for the Commonwealth and side with his friend and former counsel against the people of Virginia? Unfortunately, our money is on the latter.